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Protecting the AC-R Against Improper Invasion

4 important questions on Protecting the AC-R Against Improper Invasion

Test 2: Niesig (NY COA 1990) + 4.2, CMT 7. . . . T3 categories of corporate employees are covered by the anti-contact rule. Name them:

Employees whose acts are binding on the entity. [Basically covers employees who (1) regularly consult with counsel or (2) have the power to compromise or settle the matter on the entity's behalf; this is basically the "control group]
Employees whose acts/omissions may be imputed to the entity for purpose of criminal or civil liability in the matter in question (respondent superior: action within scope of employment)]
Employees who implement the advice of counsel

Test 3: Restatement Test. . . Privilege applies to the employees/agents of a corporation regarding legal matters of interest to the entity. [BASICALLY SAME AS NIESIG]

Employees whose statements are treated as binding on the entity by the applicable rules of evidence
Employees whose acts/omissions may be imputed to the entity for purpose of criminal or civil liability in the matter in question (respondent superior: action within scope of employment)].
Employees who implement the advice of counsel

Are former employees covered by the 4.2 Anti-Contact Rule?

No. ABA Formal Op. 91-359.

But note that CTs have prohibited contact with former employees in a few cases, most of which involve a former employee who had been extensively exposed to confidential information.

Anti-Contact Rule in Criminal Cases? [Think prosecutors]

Key = 4.2 allows a L to engage in otherwise forbidden ex parte communications if L is authorized by law to do so.

As long as the contact does not violate the 5th Am. [prohibiting custodial interrogations outside the presence of counsel where the suspect has requested a L] or the 6th Am. [prohibiting post-indictment contact with represented defendants], THEN it is authorized by law.

The question on the page originate from the summary of the following study material:

4) Protecting the AC-R Against Improper Invasion

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